Interstate Waste Removal Co. v. Board of Commissioners

Decided: March 11, 1976.

INTERSTATE WASTE REMOVAL CO., INC. (FORMERLY DELORENZO-INTERSTATE WASTE REMOVAL CO., INC.), A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,v.THE BOARD OF COMMISSIONERS OF THE CITY OF BORDENTOWN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, MARILYN CLYDE, T/A GARDEN STATE REMOVAL SERVICE CO. AND FREEHOLD CARTAGE, INC., A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS

Lynch, Larner and Horn. The opinion of the court was delivered by Larner, J.A.D.

Larner

[140 NJSuper Page 67] On October 17, 1974 the Board of Commissioners of the City of Bordentown advertised for bids

for a contract to perform garbage collection and disposal service for the municipality. On October 28, 1974 three bids were submitted which were rejected as unreasonable in comparison with prior cost estimates. The city proceeded to readvertise and on November 18, 1974 bids were submitted by plaintiff Interstate Waste Removal Co., Inc (Interstate) and defendant Garden State Removal Service Co. (Garden State). These bids were also rejected as excessive based on the cost estimates. It was at that meeting that the board of commissioners announced its intention to negotiate a contract pursuant to the authorization contained in N.J.S.A. 40A:11-5(4).

An initial effort to negotiate a contract with Middletown Refuse Removal, Inc. proved abortive in view of the lack of qualification of that contractor. Thereafter, notice was given to the prior bidders and other contractors that the city planned to negotiate the garbage contract at a meeting to be held on February 26, 1975. On that date plaintiff Interstate, defendant Garden State and three other interested contractors appeared at city hall. A form of contract was distributed to the parties present, and each was instructed to read it and insert a figure for the performance of the described services. Several questions were asked and answered with respect to clarification of the meaning of certain of the clauses in the contract.

Each interested party reviewed the papers separately and without discussion among themselves or with the city representative. Four of the contractors completed the forms by inserting the price at which they would be willing to perform the contract. The proposals were publicly announced and no one volunteered or offered to modify his figure. Neither did any contractor object to the procedure undertaken by the city.

Defendant Garden State submitted the lowest figure, Freehold Cartage, Inc. was the second lowest bidder, plaintiff Interstate was third and Fred Smith Disposal Co. fourth.

On April 14, 1975 the city entered into a contract with Garden State at the proposed price of $126,000, which was less than any of the bids received at the two formal bidding proceedings and the lowest of the offers submitted on February 26, 1975.

Plaintiff brought an action in lieu of prerogative writs to set aside the award of the contract to Garden State. On the basis of undisputed facts demonstrated by the affidavits and documents the trial judge sustained the legality of the contract award to Garden State and entered judgment accordingly. Interstate appeals from this determination.

As a preliminary matter we have considered the assertion by the city that plaintiff as an unsuccessful bidder or offerer has no standing to attack the contract award to Garden State. See Camden Plaza Parking v. Camden , 16 N.J. 150, 158-159 (1954); Waszen v. Atlantic City , 1 N.J. 272 (1949); William A. Carey & Co. v. Fair Lawn , 37 N.J. Super. 159 (App. Div. 1955); M.A. Stephen Const. Co. v. Rumson , 125 N.J. Super , 67, 74 (App. Div.), certif. den. 64 N.J. 315 (1973). Reference to this line of cases is inappropriate as to plaintiff's major contention. Its prime position is that the award based upon the negotiation procedures of the Local Public Contracts Law of 1971 is invalid because it was deprived of the opportunity to negotiate by virtue of the manner in which the negotiation session was conducted. As such, it has adequate standing to challenge the award to defendant. Cf. Lieberman v. Neptune Tp. , 50 N.J. Super. 192, 198 (App. Div. 1958); Juice Bar Corp. v. Neptune Tp. Comm. , 36 N.J. Super. 164, 171 (App. Div. 1955); Escrow, Inc. v. Haworth , 36 N.J. Super. 469, 474 (App. Div. 1955).

The first argument advanced by plaintiff is that the procedure utilized by the city in obtaining a contract price from the invited contractors was not in fact negotiation as contemplated by N.J.S.A. 40A:11-5 (4). Plaintiff, in this connection, attributes to the statutory term "negotiate" a meaning which mandates a give and take conference with

discussion across a table wherein the parties bargain for a desired result. It asserts, therefore, that the method of inviting prospective contractors to submit their figures in writing does not comport with the statutory mandate ...

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